Free Memorandum - District Court of Arizona - Arizona

Case 2:04-cv-00408-SIVIIVI Document 97-5 FiIed11/22/2006 Page10f4

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Dyer v. Napier Kent A. Dyer 51
CVO4-0408 PHX SMM 7/29/2005 `
Page 1 to Page 122
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CONDENSED TRANSCRIPT AND CONCORDANCE
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. Dyer v. Napier Kent A. Dyer
CV04-0408 PHX SMM 7/29/2005
, I 19 (Pages 73 to 76)
g Page 73 Page 75
A (1) Q. Okay. Look at the second page of the exhibit. (1) THE WITNESS: This part?
` (2) A. If I can find the right date. (2) BY MS. ZEMAN:
(3) Q. Yes. lf you look down to the two marks of the (3) Q. Yes, go ahead and read the whole thing, the
I (4) left-hand side of the column, and the date says 2/23, (4) whole answer to number 3.
(_ (5) the date of the invoice at the top says 3/12/02. (5) A. That's pretty accurate.
` (6) A. These two right here. (6) Q. Anything else you remember that you could add?
A (7) Q. So would those be the calls you were referring (7) A. Not that I can recollect.
(8) to? (8) Q. Do you remember when you were, where you were
(9) A. Yes. ( 9) when you were speaking with Jason on the phone'?
(10) Q. Okay. So a call was made to an 888 number and (10) A. I was, well, since it was 9:00 I was probably
- (1 1) that's your number? ( 1 1) standing outside or behind my booth.
(12) A. Was that my number then? I don't recognize that (1 2) Q. At the Fountain Hills shov)/7
(13) number. Oh, that's the number called. So that's the (1 3) A. Correct.
(1 4 ) number that was called, right. That- (1 4) Q. Okay. We established Jason made that call
(1 5) Q. That's the number you called? (1 5) because he was calling you back?
(1 6) A. I think that's what it says, number called, up (1 6) A. Returning.
- (1 7) on top. ( 1 7) Q. So that was the last and only phone call you
(1 8) Q. So you did say you called him and he called . (18) ever had with Jason?
(1 9) back? (1 9) A. Yes.
(2 0) A. Yes. (2 O) Q. Do you remember Jason, in that phone call,
(2 1) Q. Do you think those two entries would reflect (2 1 ) giving you an estimate of what - I am sorry. Do you
(22) that when you called him it was for three minutes and he (22) remember giving Jason an estimate of what you thought
(2 3) called back 14 minutes? (2 3) Jason made on his Precious Cargo sculpture in that phone
(24) A. Yes. (24) call'?
(2 5) Q. Okay. And then on the first page of this (25) A. No, because -- I am sorry. Could you repeat
Pa ge 7 4 Pa ge 7 6
(1 ) exhibit there are the dates. There are two entries for ( 1 ) that.
(2 ) September 29th. (2 ) MS. ZEMAN: Would you read it back.
( 3) A. Okay. ( 3) (The record was read by the reporter as
(4 ) Q. And it looks like this invoice was dated in (4 ) requested.)
(5) 2001. And it looks as though someone called your toll (5) BY MS. ZEMAN:
(6) free number from Friday Harbor, is that correct? ( 6) Q. Do you want me to rephrase it?
( 7 ) A. Yes. (7 ) A. No, I understand what you are saying.
(8) Q. Okay. And so one call was for two minutes, one (8) Q. Okay.
(9) call was one minute, but those were calls to your toll (9) A. No, he did not-- or I did not.
(1 0) free number? (1 0) Q. Do you remember telling Jason that you wanted a
(1 1) A. Yes. (1 1) certain dollar amount for his using the photograph?
(12) Q. Okay. On the February call that you had in 2002 (12) A. No. I-- no.
(1 3) with Jason when he called you back, can you tell me what (1 3) Q. Do you remember ever telling Jason that you
(1 4 ) the substance of the conversation was to the best of ( 1 4 ) wanted him to stop making and selling Precious Cargo
(1 5) your recollection, what you said and what he said? (1 5) sculptures? ‘
h (1 6) A. Yes. l am going to look on this paper here. (1 6) A. No.
( 1 7 ) Q. Sure. ( 1 7) Q. Do you have any personal diaries, journals or
(1 8) A. What number is that? ls it number 37 Yes, I (1 8) calendars that would cover the Carefree art shows that
(1 9) think it is number 3, page 5. (1 9) you attended from 1998 through 2001?
(2 0) Q. Okay. (2 0) A. I don't. Susan probably has the records on the
(2 1) A. Let's see. I would say this is pretty accurate. (2 1) computer or printed.
(22) Q. ls there anything else you remember that might (22) Q. Do you have any personal diaries, journals or
(23) have been said by either one of you in addition to what (2 3) calendars that would cover the time frame of the phone
( 2 4 ) is answered in interrogatory number 3? (2 4 ) conversation you had with Jason?
(2 5) MR. LONN: Take your time and read it. (2 5) A. No.
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Case 2:04—cv—00408-Sl\/Il\/I Document 97-5 Filed 11/22/2006 Page 3 of 4

Dyer v. Napier Kent A. Dyer
CV04—0408 PHX SMM 7/29/2005 ‘
. 20 (Pages 77 to 80)
Page 77 Page 7 9
(1) Q. Okay. So you stated that your last and only (1) Did I not give you your own?
(2) phone call with Jason was in February 2002, correct? (2) MR. LONN: I need phone records, and the other `
(3) A. Correct. (3) one, too.
(4 ) Q. Why did you wait to Hle the lawsuit until ( 4 ) MS. ZEMAN: Yes, you do. Let me see if I can
(5) February 20047 (5) find that really quick. There was a method at one time. `
(6) A. I had to think long and hard about this. It is (6) BY MS. ZEMAN:
(7) not something that Ijumped into. It is something that (7) Q. Okay. This is Exhibit No. 8. This is a copy of
(8) I really, really had to think about whether I could live (8) your card, which is the same size as the mini print?
(9) with myself for the rest of my life knowing that (9) A. Did you get permission to do this?
(1 0) somebody did this to me or doing something about it. So (1 0) Q. It falls underneath one of the copyright
(1 1) I don't believe in letting my emotions take charge of me ( 1 1) exceptions, actually.
(12) and making a rash decision. So I basically have to (12) A. Just kidding you.
(1 3) think things through, the pros and cons and how I am (1 3) Q. I know.
(14) going to feel the rest of my life about something this (1 4) Okay. If you could, look at that photograph, or
(15) big. (15) the copy of your photograph there. Could you tell me
(1 6) Q. Okay. And you did know that you and Jason had a (1 6) what parts ofthe photograph you believe are your
(1 7) disagreement or some kind of dispute in February of 2002 (17) original creation or original work?
(1 8) after your phone call? (1 8) A. I would have —-
(1 9) A. Yes. (1 9) MR. LONN: Objection; fomi.
(2 0) Q. And you — (2 0) But go ahead.
(2 1) A. Well, yes. (2 1 ) THE WITNESS: I would have to say the entire
(22) Q. And you didn‘t contact him between that time and (22) image.
(23) the Hling of the lawsuit, is that correct? (2 3) BY MS. ZEMAN:
(24) A. Correct. (24 ) Q. And the entire image to you includes what?
(25) MS. ZEMAN: Okay. I am going -- Iet's see. (25) A. Everything inside that black border.
Page 7 8 Page 8 0
(1) This is going to be the next exhibit. (1) Q. Okay. Looking at the same photograph, what
(2) (Exhibit No. 8 was marked for identification.) (2 ) parts of the photograph do you believe are not your
(3 ) (An off-the-record discussion ensued.) (3) original creation or original work?
(4 ) THE WITNESS: I guess the dates don't match on (4 ) A. Well, I obviously did not create the mountain.
(5) this. (5) I chose it. Same with the rocks and the trees and the
(6) BY MS. ZEMAN: (6) sky.
(7) Q. Okay. So you are going to make a correction? (7) Q. Okay. Anything else?
(8) A. Yes. (8 ) A. No.
(9) Q. Okay. So which do you think is the inaccurate (9) Q. `Do you believe the Mother Mountain Lion with
(10) date? ` (10) Baby in Mouth is your original creation and original
(1 1 ) MR. LONN: We are talking —- make sure what we (1 1) work?
(1 2) are talking about. This is Exhibit what, No. 1, is that (1 2) A. That‘s my artistic creation, absolutely. That
(13) right? (13) was thought out completely, planned, everything.
(1 4 ) MS. ZEMAN: That's answers to interrogatories, ( 1 4 ) Q. Okay. Are you familiar with the Koons case?
(1 5) Exhibit No. 1. (1 5) A. A little bit, not in details.
(1 6) MR. LONN: Right. Reference by page and line. ( 1 6) Q. Have you read the case?
(1 7) THE WITNESS: Page 6, line 23. (1 7) A. I have read, yes —— when you say the case, I
(18) BY MS. ZEMAN: _ (1 8) don't know if you mean the case or the case, you know,
(1 9) Q. Okay. (1 9) small, like huge amounts, but I have read about the ·
(20) A. That‘s 2001, not 2002. (20) case. .
(21) Q. Okay. Same with line 25? (21) Q. And have you read even a summary ofthe case?
(22) A. Yes. (22) A. I don't think I have read a summary ofthe case.
( 23) Q. Okay. If you could, look at Exhibit No. 8. . (23) Q. But you have read portions of the case?
(24) A. What is that? (24) A. I have.
( 25) Q. This is -- ‘ (25) Q. To the extent that you can tell me with respect
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